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There is a general presumption in favor of community property. In addition, there is a special presumption of separate property in pre-1975 transactions and a presumption against joint tenancy at the time of divorce. Some authorities try to link these presumptions to statutes that define community property. However, it is generally accepted that the general presumption affecting community property is a judicial creation. Proof that the property was acquired during marriage is not necessary. The general procommunity presumption operates to presume that the asset was acquired during marriage.


Generally, all it takes to invoke the procommunity assumption is the assertion by one of the parties that the property is community. The party who asserts that the property is separate has the burden of proof as to that issue. The presumption should not apply if the property was acquired during separation because that property is generally considered to be separate property. In states that do not regard a presumption as evidence that a jury can weigh against actual proof, if all the evidence is contrary to the presumption of community property, a directed verdict that the asset is separate must be returned. If the evidence presented is in equipoise, ...

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